Full Title Name: Fido Seeks Full Membership in the Family: Dismantling the Property Classification of Companion Animals by Statute

This paper proposes that various state legislatures should progressively dismantle the property classification of companion animals by enacting statutes permitting animal guardians recovery for non-economic damages in torts, and requiring courts to apply the "best interests of the pet" standard in custody and visitation disputes. Section II of this paper sets forth the conflict between the social and legal views of companion animals, and the historical evidence supporting each. Section III analyzes court opinions that treat companion animals as property and illustrates how the conflicting views of companion animals are manifested in case law. Section IV identifies the current trend in court decisions and legislative actions suggesting that both judges and legislators acknowledge companion animals as more than property.

Elizabeth Paek [FNa1]

I. Introduction

A little white ten-year old Bichon Frise lapdog named Leo captured international attention when his twenty-seven year old killer was sentenced to three years in prison in San Jose, California. [FN1] On February 11, 2001, Sara McBurnett fell victim to road rage when she accidentally tapped the back of a four-wheel-drive vehicle. [FN2] Immediately following the accident, the male driver exited his vehicle and approached McBurnett's car. [FN3] McBurnett rolled down her window to speak with the male driver as Leo sat on her lap. [FN4] Rather than speaking to McBurnett, the man unexpectedly reached into her car, grabbed Leo, tossed Leo into three lanes of traffic and fled the scene. [FN5] McBurnett jumped out of her car in an attempt to save Leo, but it was too late. Leo was ultimately crushed by a car and died. [FN6]

Animal lovers across the world sympathized with McBurnett and raised over $120,000 to provide reward money in locating the killer. [FN7] The San Jose police department reported that the money donated on Leo's behalf far exceeded the average amount donated in child molestation and rape cases. [FN8] As a result, an anonymous e-mail led McBurnett to Leo's killer, twenty-seven year old Andrew Burnett. [FN9] Following the killer's conviction and three-year sentence, McBurnett stated, "It wasn't just a dog to me . . . [f]or me it was my child . . . [h]e killed my baby right in front of me." [FN10]

Companion animals are defined as "those animals who live and share their lives with human beings, who are responsive to and interact emotionally with their guardians, and who are valued as ends in themselves." [FN11] Animal activists typically prefer the term "companion animal" over "pet," as it better describes the relationship between a human and domestic animal, and fully encompasses the role that such animals play in people's lives. [FN12] Likewise, the term "animal guardian" is preferred over "owner" based on the property connotation associated with the term "owner." [FN13]

Animal guardians claim that there is little distinction between their companion animals and their children. [FN14] For instance, more than 80% of companion animal guardians consider their companion animals as family members. [FN15] A 1991 survey of 41 million animal guardians revealed that 6.2 million claimed their attachment to their animal was as close as a child, and 4.2 million considered their relationship as close as a spouse. [FN16] Another study revealed that 70% considered their companion animals as children. [FN17] Childless couples, couples preparing for parenthood, and older married couples claim that their companion animals even serve as replacements for children. [FN18]

Despite these surveys, the law fails to reflect the special relationship shared between animal guardians and their companion animals as such animals are legally classified as property. [FN19] Consequently, a majority of courts reject independent claims made by animal guardians for the wrongful death of their companion animal, and preclude recovery for non-economic damages, such as loss of society/companionship, pain and suffering, and mental anguish, when their companion animals are killed as a result of a negligent act. [FN20] Furthermore, the best interests of companion animals are deemed irrelevant in custody and visitation disputes as most courts reject the application of the best interests standard to animals as property. [FN21]

The relationship between an animal guardian and a companion animal is similar to a parent and child. Because the law recognizes and protects the relationship between family members, the relationship between an animal guardian and a companion animal deserves similar protection. Courts should recognize that the established legal doctrine of companion animals as property is archaic and fails to reflect the modern social view of these animals. This paper proposes that various state legislatures should progressively dismantle the property classification of companion animals by enacting statutes permitting animal guardians recovery for non-economic damages in torts, and requiring courts to apply the "best interests of the pet" standard in custody and visitation disputes.

Section II of this paper sets forth the conflict between the social and legal views of companion animals, and the historical evidence supporting each. Section III analyzes court opinions that treat companion animals as property and illustrates how the conflicting views of companion animals are manifested in case law. Section IV identifies the current trend in court decisions and legislative actions suggesting that both judges and legislators acknowledge companion animals as more than property. Section V advocates the enactment of statutes as an effective means to dismantle the property classification of companion animals such that companion animals can finally gain legal recognition as family members.

II. Conflicting Views of Companion Animals: Society vs. Law

Recent surveys conducted in the United States revealed that animal guardians consider their companion animals as members of the family. [FN22] In contrast, established legal doctrine classifies companion animals as property. [FN23] The property status of companion animals directly conflicts with the notion that these animals are sentient and emotive beings. As a result, the law fails to reflect society's recognition of companion animals as family members. Although theology is cited as the primary basis supporting the established legal doctrine of companion animals as property, other historical evidence suggests that the human-animal bond is as strong today as it was in ancient times.

A. Social View of Companion Animals as Family

Companion animals play a well established role in society as family members. Domesticated dogs have been sharing their lives with humans for more than 12,000 years. [FN24] In comparison to other countries, the United States carries the highest per capita of dogs sharing a human-animal bond. [FN25] In the United States, there are approximately 68 million animal guardians with dogs in their household. [FN26] 40 million, or four in ten households, have at least one dog. [FN27] Approximately 63% of animal guardians with dogs have one dog in the household, 24% have two dogs, and 13% have three or more dogs. [FN28]

Domesticated cats have been companion animals for approximately 4,500 years and more than seventy-three million currently reside in U.S. households. [FN29] Over thirty-four million, or three in ten households, have at least one cat. [FN30] Approximately 49% of animal guardians with cats have one cat in the household, and the remaining percentage have two or more cats. [FN31]

1. History of the human-animal bond

Historical evidence suggests that companion animals were intimate acquaintances treasured by their human counterparts. In 1978, archeologists in northern Israel discovered a 12,000 year-old skeleton of a human and a dog buried together. [FN32] The skeleton was situated such that the woman's arm embraced the dog while her hand rested on the dog's shoulder. [FN33] Archeologists interpreted the careful placement of the skeletons as evidence of "the bonds that existed between these two individuals during life." [FN34] Additionally, ancient Egyptians considered their dogs both assistants and protectors. [FN35] Hence, a common practice in Egyptian burial ceremonies involved embalming and entombing companion animals in specially designed chambers and temples. [FN36]

In the seventeenth century, King Charles pampered his Spaniels and aristocrats frequently showered their companion animals with royal treatment. [FN37] Other early examples recognizing companion animals as human acquaintances include Shakespeare's Alcibiades who had a "handsome" dog. [FN38] Senator Vest coined the famous phrase of a dog as "man's best friend." [FN39] Sir Walter Scott made references to dogs as the "companion of our pleasures and our toils hath [the Almighty] invested [them] with a nature noble and incapable of deceit," and even Mark Twain distinguished man from dog by stating, "if you pick up a starving dog and make him prosperous, he will not bite you." [FN40] Thus, for many centuries animal guardians highly regarded the value of animals as loyal companions.

2. Animal guardians reject the notion of "ownership"

As shown by various surveys, animal guardians view their companion animals as children, not property. Constitutional Law Professor at the Harvard Law School, Laurence H. Tribe, stated in his address entitled Ten Lessons Our Constitutional Experience Can Teach Us About the Puzzle of Animal Rights: The Work of Steven M. Wise, "[w]hen people ask my wife Carolyn and me whether we own any dogs, we say no . . . [w]e don't 'own' our dog Annie . . . I can't really think of myself as owning a dog . . . [w]e and Annie are a kind of family." [FN41] Professor Tribe's perspective is one shared by most animal guardians. Based on this premise, a national animal rights organization, In Defense of Animals, embarked on "The Guardian Campaign." [FN42] This campaign advocates for the statutory replacement of the term "animal owner" to "animal guardian." [FN43] Supporters of this campaign argue that the change in terminology "denotes a much higher level of responsibility than being the owner of a thing." [FN44]

In July 2000, Boulder County, Colorado, was the first jurisdiction in the nation to amend their county ordinance by adopting the change in terminology. [FN45] Boulder's City Council passed the amendment in an eight to one vote, and sparked a trend for other municipal counties to replace its ordinances that reference the term "animal owner" to "animal guardian." [FN46] Seven other counties have followed Boulder County's lead, including San Francisco, [FN47] Berkeley [FN48] and West Hollywood [FN49] in California; the City of Sherwood in Arkansas; [FN50] Amherst in Massachusetts; [FN51] and the Village of Menomonee Falls in Wisconsin. [FN52] Although replacing the terms "animal owner" to "animal guardian" did not affect the substantive provisions of the law, the primary focus of the amendment was to transform the perception of companion animals. [FN53]

One year following Boulder County, Rhode Island took an even bolder stance by becoming the first in the nation to apply the change in terminology to its entire state legislation concerning companion animals. [FN54] Both the House and Senate of Rhode Island passed the amendment without strong opposition. [FN55] Veterinarian, Founder and President of In Defense of Animals, Elliot M. Katz, stated in an interview that the "underlying cause of so much of the mistreatment and abuse and exploitation of animals in society comes about because animals are just seen as and perceived as property." [FN56]

3. Companion animals as sentient and emotive beings

Scientific evidence supports the contention that companion animals are sentient and emotive beings. Research has shown that mammals share similar emotive and cognitive characteristics with humans and that mammals are remarkably similar to humans both neurologically and genetically. [FN57] Moreover, many scientists have concluded that the DNA of animals and humans have "a ninety percent match or agreement with each other." [FN58]

Companion animals represent a variety of human-like traits and emotions such as loyalty, trust, courage, playfulness, and happiness, as reported by many animal guardians. [FN59] Animal guardians claim that their companion animals are capable of returning love and affection. [FN60] Companion animals even appear to exhibit negative human-like traits and emotions such as avarice, apathy, pettiness, hatred, fear, and jealousy. [FN61]

Economic studies reject the notion that companion animals are fungible, inanimate pieces of property. In 1996, the American Veterinary Medical Association reported that animal guardians spent nearly $11.1 billion on health care for their companion animals. [FN62] Currently, companion animals receive a wide range of services such as psychiatric care, plastic surgery, acupuncture, and radiation treatment. [FN63] According to a 1997 Veterinary Fee Reference, "nearly three-quarters of all small animal practices [in the United States] gross $300,000-$500,000 per year, almost one-quarter gross more than $750,000 per year, and more than one-tenth gross more than one million dollars per year." [FN64]

Steven M. Wise has practiced animal protection law for twenty years and teaches "Animal Rights Law" at the Harvard Law School, Vermont Law School, John Marshall Law School, and in the Masters Program in Animals and Public Policy at Tufts University School of Veterinary Medicine. [FN65] Professor Wise raises the salient point that if companion animals were truly fungible, veterinarians would be non-existent and small animal practices would go out of business. [FN66] Animal guardians would simply abandon their pets and replace them, similar to pieces of personal property, rather than seeking treatment. [FN67] Professor Wise states:

But human companions do not usually throw their companion animals out. They do not usually abandon them. They do not euthanize them merely to obtain newer, younger, or healthier ones. This is because the value of their companion animals to them is not economic. Companion animals are not fungible. They are of a different order. [FN68]

In support of Professor Wise's assertion, the chief of staff at a prestigious Boston animal hospital reported that throughout his medical experience, "[t]he vast majority of [animal guardians] order him to save the animal no matter what the cost." [FN69]

The relationship animal guardians share with their companion animals is similar to the relationship shared between parents and children. In both instances, the extent of attachment to each other intensifies over time and the relationship evolves in similar patterns. [FN70] It is through the shared lives of "daily rituals and habits of behavior" that companion animals and their animal guardians nourish the depth of their relationship, raising it to a similar degree of a parent and child. [FN71] Like children, companion animals play significant roles in their animal guardians' lives by "providing faithful, intimate companionship that is unconditional and nonjudgmental." [FN72] Accordingly, USA Today reported in 1999 that 79% of animal guardians allow their pets to sleep in bed with them; 37% carry photos of their pets in their wallets; and 31% even take time off from work to stay home with their sick companion animal. [FN73]

Based on the intensity of the relationship shared between animal guardians and their companion animals, animal guardians suffer deep emotional distress when coping with the loss of their companion animal whether by separation or death. [FN74] A comparison study between the grief following the loss of a companion animal and the loss of a human found that 18% of adults "were unable to carry out their daily life activities during the time following the death of their [companion animal]." [FN75] This finding illustrates that the grief reactions of animal guardians following the loss of a companion animal were comparable to human reactions to the loss of a spouse, parent, or child. [FN76]

The grief experienced by animal guardians, however, is clearly distinguishable from an owner's loss of a valuable piece of personal property. [FN77] Loss of a companion animal has often been compared to "the loss of a child-surrogate, a child's playmate, [or] a companion in old age."' [FN78] The attachment animal guardians share with their companion animals is not predicated on sentiment, like a family heirloom. Instead, loss of a companion animal to an animal guardian is based on a deeply shared relationship of mutually exchanged emotions. [FN79]

B. Legal Classification of Companion Animals as Property

Although companion animals are considered family members by their animal guardians, established legal doctrine classifies these animals as property. [FN80] The property status of companion animals is typically codified in state statutes or judicially defined as chattel, a term intended to cover every kind of personal property. [FN81] In the eyes of the law, animal guardians share a legal relationship with their companion animals, not as family members, but as owners of property. The concept of property ownership or title refers to the possession, use and disposal of a thing. [FN82] Thus, companion animals possess no legal rights, may neither own nor inherit property, and the owners of companion animals as property may not sue in the companion animal's name. [FN83]

1. Historical view of companion animals as property

Professor of law and philosophy at Rutgers University School of Law, and author of Animals, Property, and the Law, Gary L. Francione, [FN84] explained that there are two primary justifications for maintaining the property status of animals. [FN85] The first justification is found in theology. [FN86] According to the book of Genesis, man is given "dominion over the fish of the sea, and over the birds of the air, and over the cattle, and over all the earth, and over every creeping thing that creeps upon the earth." [FN87] Likewise, the Western theory of linear hierarchial ascendancy, otherwise known as the Great Chain of Being, advances that plants fall under the lowest level of the chain, non-human animals above plants, humans above non-humans, and the highest level is occupied by God. [FN88]

The second justification is qualitative. Accordingly, because companion animals are defective and qualitatively different from humans, they are thought to be inherently inferior. [FN89] Aristotle considered animals as lesser beings based on their lack of a human-like rational soul. [FN90] Moreover, both Descartes and Kant, who were influential philosophers that gained notoriety for their contemplations of human existence, rejected animals as conscious or sentient beings due to their inability to "exhibit linguistic behavior." [FN91]

2. Legal treatment of humans as property

The law is not estranged to treating emotional and sentient beings as property. The legal view of companion animals as property resembles the antiquated view of Africans, women, and even children as property. [FN92] In the seventeenth century, Africans were freely bought and sold as chattel by their owners. [FN93] Rather than protecting slaves as individuals, the law governing slaves only offered legal protection to preserve the property value of the slave to his or her slave owner. [FN94] Similar to Descartes' view of animals, one of the justifications offered in support of slavery was the belief that Africans possessed no mind or will to truly be a person. [FN95] As stated by the Alabama Supreme Court in 1861, "a slave has no legal mind, [and] no will which the law can recognize." [FN96] Consequently, the legal system relied on this justification to maintain its treatment of African slaves as property. [FN97]

Likewise, women were designated as property by law. [FN98] However, the property status of women was slightly different from slaves, as women became the property of their husbands only upon marriage. [FN99] Similar to the "qualitative differences" justification for classifying animals as property, [FN100] biological differences played a significant role in the justification for designating women as property. [FN101] "Women, the physically weaker sex, were seen as delicate and less rational, therefore unable to handle the rights reserved for men." [FN102]

While theology serves as one of the justifications for classifying animals as property, [FN103] it also once served to justify Africans and women as property. [FN104] Religion drove the English, and later the Americans, to view Africans as heathens. [FN105] "African spiritualism and earth-centered totemism were incomprehensible to the English whose minds were bound by their Christian theology." [FN106] In regard to women, God declares to all women in the book of Genesis that "your desire shall be for your husband, and he shall rule over you." [FN107]

In the same way, the law also designated children as property. [FN108] In 1646, Massachusetts Colony passed the "Stubborn Child Law" which authorized the government to impose the death penalty upon children for merely disobeying their parents. [FN109] Until the early 1800s, society reasoned that because children did not possess the power to own property, they were ultimately deemed as nothing more than such. [FN110] Traditional English common law preserved the perspective of biblical times when children were "considered the creation of his father, to sell or destroy at his whim." [FN111] Children were viewed as economic assets and fathers were entitled to employ their children for the benefit of the family while claiming the profits. [FN112] Furthermore, orphaned or abandoned children could legally be "disposed of" at the father's will "in exactly the same way as a horse or piece of furniture." [FN113]

Because established legal doctrine classifies companion animals as property, they are treated similarly to inanimate objects-"useful, yet fungible, replaceable, and solely for human use." [FN114] Dog breeder Sharon Coleman stated, "[i]t's better for a pet to be a piece of property because that way its owner has some legal basis for protecting it and asserting the owner's right to that animal." [FN115] On the contrary, an analysis of case law reveals that the property classification of companion animals hinders, rather than facilitates, the legal rights of animal guardians.

The conflicting views of companion animals between society and law manifests themselves in court opinions. As stated by Professor Wise, "[o]ne judge may be unable to imagine what it is like to love a ewe lamb as a daughter or even to imagine what it is like to love a daughter . . . [whereas] another judge might instinctively understand each." [FN116] Under such a view, judges accordingly apply property law to companion animals in a strict manner, resulting in unjust and unfair decisions. Other judges may embrace the social perspective of companion animals as family members; however, these judges are nonetheless, reluctant to depart from the established legal doctrine of companion animals as property due to the lack of precedent.

A. Tort Law

Because common law has "historically distrusted emotion," courts prefer to narrowly construe claims for emotional distress. [FN117] The majority view in tort is that property owners may not make an independent claim for emotional 5 distress for the loss or destruction of that property. [FN118] Animal guardians are often precluded from recovering non-economic damages when tortious acts are committed against their companion animals based on their legal classification as property.

1. Strict application of property law

The established legal doctrine of companion animals as property leads courts to render unjust and unfair decisions. For example, a New York appellate court published a two paragraph opinion, rejecting an animal guardian's emotional distress claim for the wrongful death of his companion animal as a result of veterinarian malpractice. [FN119] In Jason v. Parks, [FN120] despite the trial court's finding of negligence on behalf of the veterinarian, the court strictly considered the dog property and summed up its analysis in one sentence stating, "[i]t is well established that a pet owner in New York cannot recover damages for emotional distress caused by the negligent destruction of a dog." [FN121] The Jason court accordingly affirmed the lower court's decision to dismiss the plaintiff's claim. [FN122]

The reasoning applied in Jason is otherwise known as the "animals as property" syllogism. [FN123] According to Professor Wise, courts that invoke the "animals as property" syllogism treat companion animals as property relying "not upon modern scientific knowledge, public policy, or legal reasoning, but upon decisions that derive from scientific knowledge, public policy, and legal reasoning of the nineteenth century or earlier." [FN124] Professor Wise asserts that when courts award damages for property loss and deny the recovery of non-economic damages in companion animal tort cases, "these courts perversely authorize the award of damages for an economic loss that human companions of companion animals wrongfully killed do not suffer and fail to compensate human companions for the emotional distress and loss of society that they do." [FN125]

The court in Jason relied on Gluckman v. American Airlines, [FN126] where a New York District Court similarly dismissed an animal guardian's claim for emotional distress based on the property status of companion animals. [FN127] In Gluckman, the plaintiff's flight was delayed and his companion animal, a two and a half-year old Golden Retriever, Floyd, was negligently left in an enclosed cargo section of an airplane at a temperature of 140 degrees Fahrenheit for over an hour. [FN128] When the plaintiff was forced to transfer planes, he requested that Floyd be returned to him. [FN129] But, by the time the airline company returned Floyd to the plaintiff, the dog was on its side, panting heavily with blood on its face and paws and on the cage, due to the dog's panicked response in attempt to escape the heat. [FN130] Gluckman was severely distraught as Floyd was forced to be euthanized as a result of severe brain damage caused by a heat stroke. [FN131]

In Gluckman, the plaintiff asserted claims that a parent would bring forth in the wrongful death of their child: intentional and negligent infliction of emotional distress, damages for loss of companionship, and pain and suffering (of the companion animal). [FN132] The trial court found that the company negligently caused the death of Floyd, [FN133] violated its own procedures of confining animals, [FN134] and violated the federal Animal Welfare Act. [FN135] Notwithstanding these findings, the Gluckman court dismissed each and every claim based solely on the property classification of Floyd. [FN136]

In its reasoning, the court first denied the plaintiff's claim for intentional infliction of emotional distress due to the lack of evidence showing that the defendant's conduct was directed intentionally at the plaintiff. [FN137] Moreover, based on the property classification of Floyd, the court held that the plaintiff could not recover for intentional infliction of emotional distress as it was inapplicable to the loss or destruction of property. [FN138] Second, the plaintiff's claim for negligent infliction of emotional distress was denied because New York case law narrowly limited such a claim to instances where "the party suffers serious, verified emotional distress as a proximate result of observing the serious injury or death of a family member." [FN139] Lastly, the court denied plaintiff's claim for Floyd's pain and suffering, and explicated that there was not a cause of action recognized "for the pain and suffering of an animal." [FN140]

As to the loss of companionship, the Gluckman court denied plaintiff's claim notwithstanding a prior New York court that permitted a similar claim. [FN141] In Corso v. Crawford Dog and Cat Hospital, Inc., [FN142] the animal guardian plaintiff planned to hold a funeral service for her deceased dog, and paid an animal hospital to deliver the casket containing her beloved companion animal. [FN143] The plaintiff in Corso sought damages for mental anguish as the animal hospital mistakenly delivered a casket containing a dead cat. [FN144] The court in Corso awarded damages for mental anguish and found that the plaintiff did suffer shock, emotional distress, and despondency due to the loss of her companion animal. [FN145] The court concluded by stating, "[t]his court now overrules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property." [FN146]

Despite the holding in Corso, the court in Gluckman interpreted the ruling in Corso as merely assessing the intrinsic value of the companion animal and it did not permit an independent claim for loss of companionship. [FN147] In Gluckman, the court not only criticized the Corso opinion, but also other courts that similarly viewed companion animals as more than property, reasoning that such decisions were "aberrations flying in the face of overwhelming authority to the contrary." [FN148] To further its contention, the court cited two cases decided in the late 1970s that affirmed the property classification of companion animals. [FN149] Moreover, the court in Gluckman claimed that the court in Corso failed to provide a legal reason for overruling prior precedent establishing companion animals as property. [FN150]

On the contrary, the court in Corso did provide a reason for overruling prior precedent, although not based on legal precedent per se. The court in Corso explained that as a matter of public policy,

[t]his decision [to award damages for mental anguish due to the loss of a companion animal] is not to be construed to include an award for the loss of a family heirloom which would also cause great mental anguish. An heirloom while it might be the source of good feelings is merely an inanimate object and is not capable of returning love and affection. It does not respond to human stimulation; it has no brain capable of displaying emotion which in turn causes a human response. Losing the right to memorialize a pet rock, or a pet tree or losing a family picture album is not actionable. But a dog that is something else. To say it is a piece of personal property and no more is a repudiation of our humaneness. This I cannot accept. [FN151]

In addition to providing a public policy reason for overruling the established legal doctrine of companion animals as property, the court in Corso appropriately limited the scope of its decision to companion animals rather than including all forms of personal property.

The disagreement between Gluckman and Corso reflects the conflicting social and legal views of companion animals. [FN152] Although the court in Gluckman criticized the court in Corso for failing to provide a legal reason for departing from the established legal doctrine of companion animals as property, Gluckman itself failed to provide a public policy reason for continuing the archaic view of these animals. [FN153]

2. Judicial attempt to overrule the established legal doctrine

While some judges recognize the unjust and unfair consequences that result from a strict application of property law to companion animals, these judges are still reluctant to depart from the established legal doctrine. For example, in Rabideau v. City of Racine, [FN154] the Supreme Court of Wisconsin denied an animal guardian's claim for emotional distress when an off-duty police officer shot and killed her dog, Dakota. [FN155] The plaintiff returned home with Dakota and after parking her car, Dakota jumped out and crossed the street heading towards the defendant's property. [FN156] While the facts were in dispute as to what followed, the court found that the defendant shot Dakota three times and caused his death. [FN157]

Plaintiff claimed both intentional and negligent infliction of emotional distress for the wrongful death of Dakota. [FN158] The Wisconsin Supreme Court denied plaintiff's recovery of non-economic damages and emphasized that such claims were only available to a plaintiff legally related to the victim such as a parent, child, grandparent, grandchild, sibling, or spouse. [FN159] Because the relationship shared between the plaintiff and her companion animal did not fall within one of these categories, the court found that plaintiff could not maintain an independent claim for emotional distress. [FN160]

The court's opinion in Rabideau is inherently confusing and contradictory. First, although the court ultimately denied the plaintiff's claims for emotional distress, the opinion began with an elaborate discussion about the special relationship shared between humans and dogs. [FN161] It stated in pertinent part:

At the outset, we note that we are uncomfortable with the law's cold characterization of a dog, such as Dakota, as mere "property." Labeling a dog "property" fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property. A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog. [FN162]

The court further provided a brief history of the relationship shared between dogs and humans, and even cited to the archaeological discovery in northern Israel of the human skeleton buried with a dog to illustrate the human-animal bond. [FN163] Additionally, the court praised the contribution dogs give to society by noting that "dogs work in law enforcement, assist the blind and disabled, perform traditional jobs such as herding animals and providing security, and, of course, dogs continue to provide humans with devoted friendship." [FN164] Despite the court's recognition of the significant contributions companion animals made to society, and acknowledgement of companion animals as more than property, it nonetheless denied plaintiff's claims for emotional distress based solely on the established legal doctrine of companion animals as property. [FN165]

Second, the court found that the categories of relationships "deeply embedded in the organization of our law and society" was limited to a victim and spouse, parent, child, grandparent, grandchild or sibling. [FN166] The court reasoned that only these limited categories of relationships allowed for the recovery of non-economic damages as they were serious, compelling, and deserving of special recognition. [FN167] Based on this premise, the court in Rabideau characterized the relationship between the plaintiff and her dog as a "best friend," which tort law does not recognize as one that allows recovery for non-economic damages. [FN168]

The Rabideau court's "best friend" analogy is unconvincing as it fails to articulate how or why the relationship between the plaintiff and her dog should be characterized as friendship, rather than as family. [FN169] Clearly, there are significant differences between friends and immediate family members. In general, friends do not: (1) depend on each other to survive; (2) provide for each other's basic living needs; (3) raise each other from birth to adulthood; and (4) share the same household from birth to adulthood. Furthermore, friends can neither be legally responsible for each other, nor do they bear any type of relationship recognized by law.

In contrast, the relationship between family members does possess such characteristics. Therefore, the relationship between an animal guardian and a companion animal more closely resembles a family member than a "best friend." Nevertheless, the court justified its decision in denying plaintiff's independent claim for emotional distress based on its "best friend" analogy, when it could have reached a different outcome by characterizing the relationship between an animal guardian and a companion animal as equivalent to a family member.

3. Extension of emotional distress claims to property

The Hawai'i Supreme Court allowed a family to make an independent claim for emotional distress for the negligent loss of their dog in Campbell v. Animal Quarantine Station. [FN170] In Campbell, the local quarantine station negligently left the family's nine-year old Boxer, Princess, in a hot van with no ventilation for at least an hour. [FN171] Princess subsequently died due to heat prostration. [FN172] The family did not witness Princess's death, did not view the deceased body, nor did they seek medical treatment for the distress suffered. [FN173] Nonetheless, the court in Campbell awarded damages to the plaintiff animal guardians for emotional distress. [FN174]

The court in Campbell relied on Rodrigues v. State, [FN175] where a family was allowed to make an independent claim for emotional distress as a result of witnessing their house flood. [FN176] The Campbell court emphasized that an individual's interest to be free from negligent infliction of serious mental distress was an independent claim. [FN177] Moreover, the Campbell court concluded that awarding damages for Princess's death was proper because emotional distress claims could be extended to the loss of property pursuant to the holding in Rodrigues. [FN178]

Initially, Campbell appeared to be a breakthrough case as Alaska, Maryland, and Florida adopted its rule of extending emotional distress claims to property. [FN179] Still, the Campbell decision was not widely adopted. For example, in Johnson v. Douglas, [FN180] the court held that plaintiffs could not make an independent emotional distress claim for the wrongful death of their dog because "[t]he extension of such thinking would permit recovery for mental stress caused by the malicious or negligent destruction of other personal property; i.e., a family heirloom or prized school ring." [FN181] The court further denied the plaintiffs' claims for emotional distress as a bystander, even though plaintiffs were in the zone of danger and witnessed the death of the dog, reasoning that such a claim was only applicable to an immediate member of the family "who is a person." [FN182] Citing to the dissent of a prior New York state court, the court stated:

While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . The court is unaware of any recent case law extending the rule to the loss of a family pet. [FN183]

According to Professor Wise, the reasons advanced by the court in Johnson and other courts that follow a similar line of reasoning are "unimpressive," as the extension of emotional distress claims to property can be limited. [FN184] Foreseeability is an essential element in determining emotional distress claims of a bystander as it appropriately limits the liability of a tortfeasor. [FN185] Professor Wise argues that extending emotional distress claims to companion animals as property can be limited, as tortious acts committed against a great majority of other personal property could not satisfy the element of foreseeability. [FN186] As Professor Wise states, "[p]encils, paper, paperclips, juice glasses, flatware, and numerous other items can be destroyed without the owner caring about anything but the cost of replacement." [FN187] Thus, Professor Wise asserts that the extension of emotional distress claims to companion animals as property has inherent limitations since humans do not create the same kind of relationships with all of their property. [FN188]

Professor Wise's contention is supported by Campbell. In Campbell, the court rejected the defendant's argument that extending emotional distress claims to property would "lead to a plethora of similar cases, many which would stretch the imagination and strain all bounds of credibility." [FN189] The court's rejection was based on its finding that no similar cases had emerged since the ten-year old ruling of Rodrigues; thus, "the fears of unlimited liability have not proved true." [FN190] Further, the court supported its finding by citing to other states that allowed similar claims without holding similar reservations. [FN191]

The decision in Campbell sparked a legal scholarly debate over whether emotional distress claims should be extended to property. Yet, amidst the discord, the Campbell case failed to challenge the property status of companion animals altogether. While the Campbell court virtuously expanded upon the Rodrigues decision to properly award damages for emotional distress to animal guardians, it also, perhaps inadvertently, created a set back for companion animals as it reaffirmed and maintained their legal status as property. Consequently, courts in other jurisdictions began citing to Campbell in support of denying emotional distress claims for the wrongful death of a companion animal, reasoning that such an extension to property was impermissible in their jurisdiction. [FN192]

B. Custody and Visitation Rights

Family law is another area of law where companion animals struggle to gain recognition as family members. More recently, companion animals have increasingly become the subject of custody and visitation disputes. Some courts reject considering the best interest of the companion animal when determining custody and visitation rights of an animal guardian. [FN193] These courts ultimately award custody to the legal owner or purchaser of the companion animal, even if the legal owner or purchaser was not involved in the companion animal's life. [FN194]

Once custody is awarded, other courts deny visitation rights to the non-custodial guardian, even if the non-custodial guardian played a significant role in the companion animal's life. [FN195] Courts deem factors such as the emotional attachment to a particular guardian and the ability for that guardian to provide a comfortable and stable environment for the companion animal irrelevant. [FN196] As a result, the special relationship between animal guardians and their companion animals are not recognized as one deserving of protection.

In Bennett v. Bennett, [FN197] a husband appealed the final judgment in a dissolution of marriage that initially awarded increased visitation rights of the parties' dog, Roddy, to the wife. [FN198] The court remanded the case and instructed the trial court to apply the equitable distribution doctrine. [FN199] The court emphasized that custody and visitation rights could not be applied to a dog based on the established legal doctrine of animals as property. [FN200] In re-affirming the property status of companion animals, the court opined that while some courts award these animals special status as a family member, such a consideration is "unwise." [FN201]

The court in Bennett justified its decision by citing to concerns of judicial inefficiency. [FN202] It found that courts were already overwhelmed in managing child cases concerning custody, visitation, and support matters due to the continuing problems of enforcement and supervision. [FN203] Accordingly, the court concluded that, "[w]e cannot undertake the same responsibility as to animals." [FN204] However, the court ironically acknowledged in closing that those judges who had awarded custody and visitation of companion animals in other jurisdictions were "endeavoring to reach a fair solution under difficult circumstances." [FN205]

The court's affirmation of companion animals as property and refusal to consider the best interests of the companion animal denies that these animals are capable of developing special relationships with a particular animal guardian. By contrast, when children are the subject of a custody or visitation dispute, virtually all state courts apply the "best interests of the child" standard to determine what the child's welfare requires. [FN206] Despite the issue of vagueness in applying the "best interests of the child" standard, many statutes and most case law adopt it as the ultimate criterion for custody awards. [FN207]

There are several factors considered in determining the child's best interests. [FN208] One factor is the primary caretaker presumption, which considers who was primarily responsible for the "day to day and hour to hour care of the child," such as feeding, clothing, arranging for medical care, transporting to and from school, assisting in homework assignments, and providing discipline. [FN209] According to some scholars, the most important factor for a court to consider is the psychological relationship between the parent and the child. [FN210]

Because animal guardians can develop strong emotional bonds with their companion animals as intensely as parents do with children, the psychological relationship between an animal guardian and a companion animal ought to be an important factor for courts to consider when determining custody and visitation disputes. Further, if a particular animal guardian is the primary caretaker of the companion animal, the primary caretaker presumption should be another consideration. Nevertheless, courts that follow Bennett refuse to consider such factors deemed essential to the welfare of children, and similarly essential to the welfare of companion animals.

In the recent case of Juelfs v. Gough, [FN211] the Alaska Supreme Court ruled that a wife could not modify a divorce decree to gain physical custody and increased visitation rights of a chocolate Labrador retriever, Coho. [FN212] The divorce decree awarded shared ownership of Coho to the parties. [FN213] After claiming that her husband failed to allow her time with Coho, the wife filed a motion to review the decree. [FN214] Consequently, the lower court issued a custody order and awarded physical custody to the husband with reasonable visitation rights to the wife because of apparent dog fights at the wife's home. [FN215] The court in Juelfs, however, stated that property settlements incorporated into divorce decrees were deemed final and because the dispute over Coho was considered a dispute over property, modification of the divorce decree was denied based on the law governing property division. [FN216]

The court correctly found that property settlements in divorce decrees are conclusive. [FN217] However, custody and visitation agreements in divorce decrees concerning a child may be modified pursuant to statute or common law. [FN218] But, because the court treated Coho as property rather than a child, it denied the wife's request for physical custody and increased visitation. [FN219]

While Coho was the subject of a property settlement pursuant to the divorce decree, a subsequent custody order was issued by the lower court and presumably in effect at the time of the current litigation. Custody orders concerning children may be modified by a court in all states to further their best interests, granted "a substantial change in circumstances affecting the welfare of the child has occurred since the original custody order was entered." [FN220] Although the court in Juelfs ruled that the divorce decree was final, it could have addressed the subsequent custody order as one similar to a child custody order and allowed for modification accordingly. However, based on the property status of Coho, the court seemingly refrained from analyzing the subsequent custody order issued by the trial court and instead focused on the divorce decree as a grounds for denial of modification.

The resulting effect of courts treating companion animals as property is that an independent claim for mental anguish is denied even when an animal guardian genuinely suffers psychological damage as a result of the tortious act committed against their companion animal. Further, the best interests of the companion animal are not considered in custody and visitation disputes. As Professor Francione stated:

The problem is that as long as property is, as a matter of legal theory, regarded as that which cannot have interests or cannot have interests that transcend the rights of property owners to use their property, then there will probably always be a gap between what the law permits people to do with animals and what any acceptable moral theory and basic decency tell us is appropriate. [FN221]

Consequently, the relationship between animal guardian and companion animals are not recognized as one worth protecting and the welfare of these animals is deemed irrelevant.

IV. Companion Animals Gain Legal Recognition as More Than Property

There is a trend for courts to recognize companion animals as family members, as seen by the growing number of courts that are overruling the anachronistic rule of treating companion animals as property. [FN222] The legal reasoning articulated in the opinions of these courts effectively utilizes modern scientific knowledge and public policy arguments to challenge the established legal doctrine. Despite the absence of statutes that abrogate the property status of companion animals, judges are increasingly playing visionary roles by writing compelling opinions that are both insightful and inspiring.

Various state legislatures, and even Congress, are taking similar action by enacting laws to promote the welfare of companion animals and protect the rights of animal guardians. Such action exemplifies legislative acknowledgment that companion animals deserve protection beyond what is afforded by property law. Thus, companion animals are progressively gaining legal recognition as family members rather than mere property.

A. Judicial Acknowledgment

1. Tort law

While some courts feel restricted by the legal status of companion animals as property, [FN223] other courts are boldly refusing to treat these animals as property. In Richardson v. Fairbanks North Star Borough, [FN224] a married couple claimed intentional infliction of emotional distress for the wrongful death of their companion animal by a local animal shelter. [FN225] There, the court allowed the plaintiffs to make an independent claim for emotional distress despite the legal status of animals as property. [FN226] The court insightfully stated, "[w]e recognize that the loss of a beloved pet can be especially distressing in egregious situations . . . . Therefore, we are willing to recognize a cause of action for intentional infliction of emotional distress for the intentional or reckless killing of a pet animal in an appropriate case." [FN227]

Likewise, in Bueckner v. Hamel, [FN228] the defendant shot plaintiff's two dogs during a hunt. [FN229] The issue concerned actual damages awarded by the trial court for the death of one of the dogs. [FN230] While the court affirmed the trial court's award for damages, Judge Andell's concurrence elaborated on the majority's decision. Judge Andell's concurrence is instructive as he articulated a cogent argument driven by modern scientific knowledge and public policy in favor of recognizing companion animals as family members. [FN231]

Judge Andell clearly distinguished between real property and companion animals by arguing that real property lacked characteristics of a family member. [FN232] He emphasized that the loss of a highly valued heirloom did not constitute a similar loss of a living being, even if the being is non-human. [FN233] While he conceded that the "established principle of law," deemed animals as property, Judge Andell properly rejected this notion and claimed that companion animals belonged in a completely "unique category of 'property' that neither statutory law nor case law has yet recognized." [FN234]

Judge Andell's concurrence is strongly supported by modern science and public policy. [FN235] For instance, he recognized that companion animals were more than property by citing to scientific research indicating the similarities between the neurological and genetic make-up of humans and higher primates. [FN236] Further, Judge Andell identified that "simplistic, ill-informed sentiment" based on the similar biological make-up between humans and higher primates was not the driving force in society's compassion for mammals. [FN237] Rather, this compassion reached across the boundaries of species. [FN238] In his closing paragraph, Judge Andell insightfully remarked:

The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live. In doing so, courts should not hesitate to acknowledge that a great number of people in this country today treat their pets as family members. Indeed, for many people, pets are the only family members they have. [FN239]

Judge Andell's concurrence in Bueckner was commendable not only for his recognition of companion animals as sentient and emotive beings, but also for his visionary articulation of how the ever changing social atmosphere should be directly reflected in the law.

Recently, the Third Circuit Court of Appeals addressed a companion animal case and reversed a Pennsylvania District Court's decision that had denied a family's claim for intentional infliction of emotional distress for the wrongful killing of their 3-year old Rottweiler, Immi. [FN240] In Brown v. Muhlenberg Township, the Brown family lived in a residential area and was in the process of moving. [FN241] While one of the animal guardians, Kim, was packing upstairs at her house, her husband, David, was loading the car. [FN242] Unbeknownst to the Browns, their gate latch was open and Immi wandered into an adjacent parking lot. [FN243] A witness who was parked in the lot observed Immi casually sniffing the area, and then proceed to walk along the sidewalk on the street where the Browns lived. [FN244] As Immi approached the sidewalk, a police officer who was driving by pulled over, exited his vehicle, and attempted to call to her. [FN245] Immi barked several times and withdrew, and according to a witness, "did not display any aggressive behavior towards [the police officer] and never tried to attack him." [FN246]

Although the police officer was standing face to face with Immi approximately ten to twelve feet away from each other, he began to reach into his holster to pull out his gun. [FN247] When Kim happened to look out of an open window of her house that was fifty feet away, she saw the police officer pointing his gun at Immi and screamed as loudly as she could, "That's my dog, don't shoot!" [FN248] Despite Kim's plea to stop the shooting, the police officer fired his gun five times. [FN249] One bullet entered Immi's right mid-neck, three or four bullets entered Immi's hind end. [FN250] For three years, Immi was the playmate of the Brown's pre-school aged children and had never exhibited violent or aggressive behavior towards anyone. [FN251]

The first issue examined by the court was the Brown's claim that the police officer violated their constitutional right to be free from unreasonable governmental seizures of their property. [FN252] Thus, the animal guardians in Brown utilized the property classification of Immi and successfully argued that the police officer's seizure was unreasonable. [FN253]

Additionally, the court reversed the Pennsylvania District Court's decision and ruled that the police officer was not entitled to sovereign immunity from state law as he acted intentionally in inflicting emotional distress upon the Brown family. [FN254] In Brown, the Third Circuit Court cited to Bandsczek v. Kowalski, [FN255] Pennsylvania's first case dealing with a claim for emotional distress as a result of the wrongful death of two dogs. [FN256] The Brown court, without any reservations, affirmed the ruling of Banasczek and stated:

Given the strength of community sentiment against at least extreme forms of animal abuse and the substantial emotional investment that pet owners frequently make in their pets, we would not expect the Supreme Court of Pennsylvania to rule out all liability predicated on the killing of a pet. [FN257]

2. Family law

In the area of family law, courts have also rejected the notion of companion animals as property in custody and visitation disputes by adopting the "best interests of the pet" standard. [FN258] The "best interests of the pet" standard resembles the "best interests of the child" standard, [FN259] as the court determines custody and visitation awards by considering certain factors deemed essential in ensuring the welfare of a companion animal. For instance, in a custody dispute between two roommates over a cat named Lovey, a New York appellate court dismissed the application of property law to companion animals and adopted the "best interests of the pet" standard. [FN260] The plaintiff in Raymond v. Lachmann, [FN261] brought Lovey into a shared housing situation and after leaving the premises, sought to relocate Lovey to another home. [FN262] Initially, the trial court deferred to Lovey's best interests and ordered the parties to form a visitation schedule. [FN263] Subsequently, an appellate court treated Lovey as property and awarded the cat to the legal owner. [FN264] When the appellate court's decision was appealed, the court in Raymond reversed, and after applying the "best interests of the pet" standard, ruled in favor of the defendant.

The Raymond court reasoned that given the advanced age of the cat, it was in the best interest of the companion animal to remain at the home where he would be most comfortable. [FN265] In expressing its acknowledgment of the companion animal as more than property, the court stated:

Cognizant of the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years. [FN266]

More recently, another court refused to treat a companion animal as property in a family law case. In Zovko v. Gregory, [FN267] two roommates entered into a custody dispute over a cat named Grady after deciding to live in separate housing. [FN268] The court in Zovko applied the "best interests of the pet" standard in reaching its decision and ruled against the original owner of Grady by awarding custody to the owner's roommate who shared a closer bond with the cat. [FN269]

3. Bankruptcy law

While family courts increasingly recognize companion animals as more than property, interestingly, bankruptcy courts adopt a similar recognition. The various local rules of bankruptcy law adopted in most states expressly exempt "household pets" from liquidation despite the general principle that bankruptcy trustees are required to aggressively collect assets to satisfy creditors' claims. [FN270] This exemption illustrates how even bankruptcy courts acknowledge that companion animals are more than just a valuable piece of property.

In the case of In re Gallegos, [FN271] a U.S. Bankruptcy Court in Idaho held that a pet horse, although residing outdoors, could qualify as a "household pet." [FN272] Accordingly, the court found that even if the companion animal does not reside within the home, this fact is not determinative. [FN273] Rather, the court stated:

[i]t is more the fact that an animal is held primarily for the enjoyment and companionship of its owners, and not for some other reason, that makes the pet a member of a debtor's household. There is no dispute that a special bond exists between Debtor's family members and Mittens. [FN274]

Moreover, the fact that the horse lived outside the family's house was irrelevant in the court's determination of the horse as a member of the family. [FN275] In response to the trustee's objection to the debtors' exemption of Mittens as a "household pet," the court exclaimed, "[y]ou've never heard of a household horse? Well listen to this: Trustee's objection to Debtors' claim of exemption is hereby DENIED." [FN276]

These cases in the areas of tort, family, and bankruptcy law, illustrate the judicial trend to recognize companion animals as more than property. When courts permit animal guardians to make an independent claim for emotional distress due to the negligent loss of their companion animal, apply the "best interests of the pet" standard to determine custody and visitation disputes, and consider the manner in which a family treats its companion animal to determine whether the animal is a "household pet," courts properly acknowledge companion animals as members of the family, rather than mere property.

B. Legislative Acknowledgment

In aion to judicial acknowledgment, an examination of various state and congressional statutes reveals that legislatures also recognize companion animals as more than property. There are more than sixty federal animal protection statutes currently in effect. [FN277] In addition, all fifty states in this nation have adopted anti-cruelty laws to protect animals from inhumane treatment. [FN278] Further, various states are moving beyond the mere protection of a companion animal's welfare to the recognition of these animals as family members by enacting statutes that create honorary trusts for pets.

1. Anti-cruelty statutes

Both Congress and state legislatures acknowledge that companion animals are more than property through their enactment of laws that protect animals from cruelty. [FN279] The Federal Animal Welfare Act ("AWA") was passed in 1966 "to prevent companion animals from being stolen and placed into research facilities." [FN280] Following the enactment of the AWA, legislatures in all fifty states enacted anti-cruelty laws to prevent human abuse of such animals. [FN281] The mere enactment of anti-cruelty laws demonstrates the government's recognition that companion animals are more than property as they require protection that ordinary property law fails to provide. As Debra Squires-Lee saliently observed with reference to tort law, "[i]f animals were truly property, there would be little reason for Congress to pass such a law protecting their interests and providing for some measure of comfort during transport . . . [l]egal precedent, therefore, does exist for tort to redefine companion animals as more than mere property." [FN282]

2. Honorary trusts for pets

A recent trend in recognizing companion animals as family members is the legislative enactment of honorary trusts for pets. Honorary trusts allow companion animals to benefit from the assets of an animal guardian's trust fund. [FN283] Between 12% and 27% of animal guardians include their companion animals in their wills. [FN284] In 1991, Harper's Index reported that over one million dogs were named as will beneficiaries. [FN285] A few examples of celebrity pets named as will beneficiaries include Doris Duke's dog who inherited $100,000 in trust; Betty White's pets will reportedly receive her entire five million dollar estate; Oprah Winfrey's will purportedly mandates that her dog live a luxurious life; and singer Dusty Springfield provided in her will that her cat, Nicolas, was to listen to Dusty's recordings each night at bedtime and was to be fed only imported baby food. [FN286]

Although the English common law looked favorably upon gifts for companion animals, in the United States, animal guardians are often precluded from ensuring the enforcement of wills and trusts benefiting companion animals. Two common issues that arise with companion animals as will beneficiaries are the rule against perpetuities and legal standing. [FN287] Because the rule against perpetuities requires that the measuring life be that of a human, gifts in favor of companion animals fail to meet the legal definition of a "living being." [FN288]

For the same reason, companion animals lack standing to enforce trusts created on their behalf. [FN289] Like parents, animal guardians desire to ensure the continued care of their companion animal following their death. This desire exemplifies their consideration of their companion animals as members of the family. Consequently, in 1990, the National Conference of Commissioners on Uniform State Laws added a section to the Uniform Probate Code that acknowledged and validated trusts for the care of a companion animal. [FN290]

Following the adoption of the Uniform Probate Code's amendment, various state legislatures began enacting honorary trusts for pets to ensure that the wishes of animal guardians to financially support their companion animals following their death could rightfully be carried through. [FN291] Approximately eighteen states across the nation have enacted honorary trusts for pets including Alaska, [FN292] Arizona, [FN293] California, [FN294] Colorado, [FN295] Hawai'i, [FN296] Iowa, [FN297] Michigan, [FN298] Missouri, [FN299] Montana, [FN300] Nevada, [FN301] New Jersey, [FN302] New Mexico, [FN303] New York, [FN304] North Carolina, [FN305] Oregon, [FN306] Tennessee, [FN307] Utah, [FN308] and Wisconsin. [FN309]

During the Congressional Session of 2001 to 2002, the State of Oregon's Representative, Earl Blumenauer, introduced a "pet trust" bill named after his companion animal, Morgan. [FN310] The Morgan bill would allow an animal guardian to create a trust fund for the benefit of a companion animal for the life of the animal, and any remaining funds in the trust after the death of the companion animal would be given to a pre-determined qualified charity. [FN311] On May 10, 2001, the Morgan Bill was referred to the House Committee on Ways and Means, but has not yet been received from the Government Printing Office for the upcoming Congressional Session of 2002 to 2003. [FN312]

There are several positive aspects of the Morgan bill. First, one of the provisions of the bill ensures that companion animals receive proper care as will beneficiaries for their entire life, as opposed to some state statutes which restrict a trust fund from existing beyond twenty-one years. [FN313] Second, if enacted, the Morgan bill will become federal law and applicable to all states. [FN314] Third, the Morgan bill represents Congress's acknowledgment that companion animals are family members rather than property.

3. Federal housing acts

In 1983, Congress recognized the value of companion animals to their elder and disabled animal guardians by enacting the National Housing Act. [FN315] Despite "no pet" provisions in leases and homeowners association or condominium bylaws, the National Housing Act provides a limited right for the elderly and disabled to keep their companion animals in federally-assisted housing specifically designated for the elderly or disabled. [FN316] Moreover, the 1988 amendments to the Fair Housing Act mandate that housing provide reasonable accommodations, which include permitting seeing-eye dogs to reside with their animal guardians. [FN317]

Clearly, there is both a judicial and legislative trend to reject companion animals as property. As stated by Professor Francione, "[t]o label something property, is, for all intents and purposes, to conclude that the entity so labeled possesses no interests that merit protection." [FN318] Accordingly, judicial and legislative acknowledgment that companion animals possess interests that merit protection indicate a legal motive to remove the property label of these animals.

V. Dismantling The Property Status of Companion Animals by Statute

Based on the legal recognition of companion animals as more than property, there is hope for these animals to gain full membership in the family. The property status of companion animals can be progressively dismantled by statute. Though not a revolutionary approach, codifying certain rights of animal guardians to ensure the protection of their companion animals can, at the very least, attempt to chip away at the legal view of companion animals as property and in essence, award these animals a higher legal status. Even a subtle change in terminology within the law can result in a vast change of perception. As stated by a representative of In Defense of Animals, "[w]ords do have power, and the way we speak reflects the way we act." [FN319]

A. Statutory Recognition of Tort Liability

Within the past few years, two states made impressive advancements in facilitating an animal guardian's recovery of non-economic damages for the wrongful death of their companion animal by statutorily recognizing tort liability. For example, the T-Bo Act, passed on May 10, 2000, was introduced to the Tennessee legislature by Senator Steve Cohen and named after his beloved Shitzu dog. [FN320] T-Bo was attacked and killed as a result of severe injuries caused by a loose dog. [FN321] When the animal guardians of the attacking dog failed to take responsibility and refused to pay for T-Bo's medical bills, Senator Cohen sued in small claims court. [FN322] While the court awarded Senator Cohen damages to recover for T-Bo's medical bills, Senator Cohen was prevented from making an independent claim for emotional distress since companion animals were deemed property. [FN323]

The T-Bo Act codifies an animal guardian's right to file claims for non-economic damages, such as mental anguish, for the loss or serious injury inflicted upon their companion animal. [FN324] Tennessee courts may award up to a maximum of $4,000 in non-economic damages if a companion animal is killed or sustains serious injuries as a result of an intentional or negligent act by a human or other animal. [FN325] The T-Bo Act narrowly defines "pet" to include only domesticated dogs or cats that are "normally maintained in or near the household of its owner." [FN326] While the T-Bo Act limits the amount of recoverable damages to the "loss of the reasonably expected society, companionship, love and affection of the pet," it excluded the imposition of limits on intentional infliction of emotional distress claims and any other claims, provided they do not involve the sole loss of a pet. [FN327]

Several concessions to meet the concerns of insurance companies and farming industries were incorporated into the final form of the T-Bo Act. [FN328] For example, while the T-Bo Act originally proposed a maximum amount of recoverable damages at $5,000, the amount was lowered to $4,000 in its final form. [FN329] The T-Bo Act accommodates rural residents as such areas are excluded from enforcement of the Act due to the recognition of difficulty in regulating rural areas where roaming pets are commonplace. [FN330] Further, it also allows farmers to protect their livestock from attacking pets by imposing Marshall law. [FN331] Lastly, the T-Bo Act excluded the imposition of liability on veterinarians. [FN332]

More recently, Colorado lawmakers introduced a bill that would far exceed the maximum amount of recoverable non-economic damages for the loss of a companion animal as provided for by the T-Bo Act, and specifically includes the imposition of liability on veterinarians. [FN333] On January 31, 2003, primary sponsors, Representative Mark Cloer and Senator Ken Chlouber, introduced House Bill 03-1260, which would allow people in Colorado to sue veterinarians and animal abusers, and seek loss of companionship damages for up to $100,000, plus reasonable attorney fees awarded to the prevailing party. [FN334] Further, the bill also requires veterinarians to obtain a signed informed consent document by the animal guardian prior to performing a service involving substantial risk to the companion animal. [FN335]

House Bill 03-1260 clearly recognizes companion animals as family members and deserving of the same safeguards afforded to their human animal guardians. Among the general assembly findings and determinations proposed in Section 13- 21-1001 of House Bill 03-1260, subsection (b) states that, "[c]urrent laws fail to make the owner of the injured companion dog or cat whole, and they do not accurately reflect society's favorable attitude toward companion dogs and cats." [FN336] In addition, subsection (e) of the same section proclaims that "[c]ompanion dogs and cats often are treated as members of a family, and an injury to or the death of a companion dog or cat is psychologically and emotionally significant and often devastating to the owner." [FN337]

Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court, in her concurring opinion, suggested the enactment of a statute as an appropriate means to address the public policy concerns raised by the court in Rabideau. [FN338] In Rabideau, the court questioned the difficulty in limiting the definition of "companion animals," reasoning that humans are capable to form emotional bonds to "an enormous array of living creatures." [FN339] The court further emphasized the importance of distinguishing frivolous from genuine emotional distress claims and fairly imposing financial burdens upon tortfeasors. [FN340] Consequently, Judge Abrahamson acknowledged that the T-Bo Act defined a workable limited scope for emotional distress claims for the loss of a companion animal and stated, "[s]uch a statute allows the legislature to make a considered policy judgment regarding the societal value of pets as companions and to specify the nature of the damages to be awarded in a lawsuit." [FN341]

Both the T-Bo Act and House Bill 03-1260 meet the various public policy concerns raised by the court in Rabideau. [FN342] Accordingly, the T-Bo Act and House Bill 03-1260 include caps that specify the maximum amount an animal guardian may recover for non-economic damages. [FN343] Secondly, recovery of damages is narrowly limited to a wrongful or negligent act committed against a domesticated cat or dog. [FN344] Thus, both the T-Bo Act and House Bill 03-1260 avoid the possibility of sky rocketing awards for damages without limits and a wide range of claims made on behalf of various animal species. [FN345]

In addition to meeting public policy concerns, House Bill 03-1260 proposes to require all claims to initially be asserted through alternative dispute resolution to minimize the impact upon the Judicial Department. [FN346] Based on the alternative dispute resolution requirement, House Bill 03- 1260 attempts to minimize the amount of civil cases since such claims can be absorbed within existing department resources. [FN347] As both the T-Bo Act and House Bill 03-1260 illustrate, the enactment of statutes can be utilized to resolve many of the issues raised by those courts that are unwilling to extend the recovery of non-economic damages to animal guardians. Moreover, both the T-Bo Act and House Bill 03-1260 exemplify the state legislature's recognition of companion animals as family members.

B. The "Best Interests of the Pet" Standard

The court's adoption of the "best interests of the pet" standard recognizes companion animals as more than property as it considers factors paramount to the welfare of the animal, rather than the rights of the legal "owner." [FN348] In child custody and visitation cases, the "best interests of the child" standard invariably considers that "the right of a child to a safe, wholesome, and caring environment takes precedence over the parents' rights." [FN349] Further, although other standards are occasionally adopted by courts to determine child custody and visitation, [FN350] the overarching principle demands that the child's welfare be the ultimate test. [FN351]

The "best interests of the child" standard is codified in many state statutes and adopted by most case law. [FN352] In contrast, the "best interests of the pet" standard is not codified. While the "best interests of the pet" standard evolved from case law, courts have failed to set a firm precedent. [FN353] Therefore, codifying the "best interests of the pet" standard in state statutes will require courts to apply this rule and set a precedent for other courts to follow. Considering the best interests of the companion animal when determining custody and visitation disputes acknowledges companion animals as family members rather than property. Further, it recognizes the need to ensure the welfare of companion animals and protect the relationship animal guardians share with their animals when determining custody and visitation disputes.

C. Switzerland's Proposed Referendums

Switzerland has gained international attention as an animal loving nation. Animal-rights activists in Switzerland aggressively campaigned to raise the legal status of companion animals and successfully obtained over 100,000 signatures to put a referendum out for a national vote. [FN354] Currently, companion animals in Switzerland are deemed property, similar to the United States. [FN355] The referendums propose that companion animals be given similar legal rights to children in tort offenses and divorce proceedings. [FN356] One proposal attempts to resolve Switzerland's current law in tort that precludes animal guardians from recovering medical expenses when an animal is injured by a third party. [FN357] The second proposal requires Swiss courts to consider the best interest of the companion animal when deciding custody disputes. [FN358]

Another Swiss animal-rights organization is gathering signatures to place a third referendum that proposes even stronger rights for animals. [FN359] This proposal calls for "the respect of an animal's dignity, emotions and ability to feel pain" by amending the Swiss Constitution to enshrine animals' rights. [FN360] The constitutional amendment gives animals standing to sue as plaintiffs in Swiss courts by receiving the appointment of legal representation. [FN361]

The referendums suggested by Switzerland recognize companion animals as bonafide members of the family. Based on the current legal trend in the United States to acknowledge companion animals as more than property, the idea of awarding these animals rights similar to children in the United States may be within view. Should Switzerland succeed in adopting the proposed referendums into law, it will most certainly serve as an inspiring example for other countries, such as the United States, to follow Switzerland's innovative lead.

In sum, the enactment of statutes can progressively lead to dismantling the property classification of companion animals. After all, the enactment of the Thirteenth Amendment marked the end of slavery and the treatment of Africans as property. [FN362] While women and children still struggle to gain recognition as equals with men, their fight to emancipate themselves from a similar property status also derived from the enactment of statutes. [FN363] For instance, the Married Women's Property Act, passed by various state legislatures, recognized women's rights as individuals and redefined the legal position of women within a marriage. [FN364] Moreover, Congress enacted the Fair Labor Standards Act banning all child labor in businesses pursuant to the Commerce Clause, which ultimately overruled laws that maintained the property status of children. [FN365]

The end of slavery and the recognition of women and children as more than property was not an overnight success, nor did it transpire through a profound declaration of independence. Rather, their recognition as living beings occurred piecemeal through the enactment of statutes that gradually eroded their legal classification as property. The history of slaves, women, and children optimistically illustrates how companion animals might gain similar recognition as more than property. As Harvard Constitutional Law Professor Laurence Tribe eloquently stated:

Broadening the circle of rights-holders, or even broadening the definition of persons . . . is largely a matter of acculturation. It is not a matter of breaking through something, like a conceptual sound barrier. With the aid of statutes like those creating corporate persons, our legal system could surely recognize the personhood of chimpanzees, [and] bonobos . . . . Just as the Constitution itself recognizes the full equality of what it calls natural born citizens with naturalized citizens, who acquire that status by virtue of Congressional enactment, so the possible dependence of the legal personhood of non-human animals on the enactment of suitable statutory measures need not be cause to denigrate the moral significance and gravity of that sort of personhood. [FN366]

Because the enactment of statutes can create a particular legal status, analogously, it can also be utilized to dismantle them.

V. Conclusion

While companion animals are proclaimed to be family members, the law fails to embrace this social value and thus, unjustly treats these animals as property. As Judge Andell stated in Bueckner, "[t]he law must be informed by evolving knowledge and attitudes . . . [o]therwise, it risks becoming irrelevant as a means of resolving conflicts." [FN367] There is, however, a judicial and legislative trend to acknowledge companion animals as more than property, and the enactment of both state and federal statutes are currently the strongest force in dismantling the property status of companion animals.

Companion animals, like all animals, deserve to be treated with dignity and respect as emotional and sentient beings. The property classification of all animals should be completely abrogated. According to Professor Francione, however, awarding all animals "rights" under our existing legal system is difficult because "an animal rights position requires a complete rethinking of the legal status of animals and portends significant economic and social consequences in light of the pervasive exploitation of animals for everything from sources of food, clothing, and entertainment to the primary 'model' for biomedical research." [FN368] Nevertheless, the notion of awarding all animals "rights" is an issue that must continue to be explored. Based on the progressive legal development surrounding companion animals, it may be just around the corner.

____________________________

[FNa1]. J.D. Candidate, May 2003, William S. Richardson School of Law, University of Hawai'i. Special thanks to Professor Douglas A. Codiga for his relentless instruction and direction; Liann and Daisy Ebesugawa for their passion and belief in this paper; Sheree and Emi Nitta for their input and support; my sister Chanel Mia Paek for sharing her love for animals with me; and last but not least, to my two beloved companion animals, China and Kea, for their eternal inspiration.

[FN7]. Gillan, supra note 1; Three Years for Road-Rage Dog Killer, supra note 1; Man Gets 3 Years for Throwing Dog in Traffic, supra note 1. Since an anonymous e-mail reported the killer, $75,000 of the $120,000 reward money went to John Mora who witnessed the crime and testified. Gillan, supra note 1; Three Years for Road-Rage Dog Killer, supra note 1; Man Gets 3 Years for Throwing Dog in Traffic, supra note 1. The remaining amounts were dispersed among four other citizens who assisted in the investigation. Gillan, supra note 1; Three Years for Road-Rage Dog Killer, supra note 1; Man Gets 3 Years for Throwing Dog in Traffic, supra note 1.

[FN11]. Debra Squires-Lee, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L. Rev. 1059, 1098 n.2 (1995). This paper narrowly focuses on dogs and cats as companion animals; however, it does not reject that other domesticated animals, including but not limited to fish, mice, rats, hamsters, gerbils, rabbits, and birds, may be included in the definition of companion animals. Nevertheless, due to the statistical prevalence of dogs and cats in the United States and their involvement as subjects of published case law, this paper will primarily focus on dogs and cats.

[FN12]. Id.

[FN13]. Id.; see also discussion supra Part II.A.2 (various states and counties that enacted statutes to amend the term "animal owner" with "animal guardian").

[FN24]. American Veterinary Medical Association Task Force on Canine Aggression and Human-Canine Interactions, A Community Approach to Dog Bite Prevention, 218 J. Am. Veterinary Med. Ass'n 1732, 1733 (2001) (citing B.V. Beaver, Canine Behavior: A Guide for Veterinarians (WB Saunders Co. 1999)). Due to the high number of dogs and cats sharing their lives with humans, these particular animals appear to shape the definition of "companion animals" as they are the subject of virtually all published case law. See id.

[FN45]. On July 11, 2000, the Boulder, Colorado City Council Voted 8-1 to Change the City's Municipal Code to Refer to People as the Guardian of Their Companion Animals Instead of as Their "Owners.", In Defense of Animals, at http://www.idausa.org/campaigns.html (July 12, 2000). The Boulder City Council passed the amendment in an eight to one vote. Id.

[FN46]. See discussion supra Part II.A.2.

[FN47]. Board Vote Allows San Francisco Residents to be Recognized as Animal "Guardians" by a Vote of 8-3 San Francisco Becomes the 7th U.S. City to Codify the Term Animal Guardian, at http:// www.idausa.org/news/currentnews/sfguardian.html (last visited Feb. 13, 2003). San Francisco County amended its code to include the designation of "animal guardian" on January 13, 2003. Guardian Campaign Updates, at http:// www.idausa.org/campaigns/guardian/updates.html (last visited Feb. 13, 2003). The San Francisco Board of Supervisors approved the measure by a vote of eight to three. Board Vote Allows San Francisco Residents to be Recognized as Animal "Guardians" By a Vote of 8-3 San Francisco Becomes the 7th U.S. City to Codify the Term Animal Guardian, at http:// www.idausa.org/news/currentnews/sfguardian.html (last visited Feb. 13, 2003). San Francisco was the seventh city in the nation to codify the change in terminology. Id.

[FN48]. By Unanimous Vote, City of Berkeley Recognizes and Codifies the Benefits of Animal Guardianship, In Defense of Animals, at http:// www.idausa.org/news/newsarchives/news_berkeley.html (Feb. 28, 2001). On February 27, 2001, the Berkeley City County passed legislation to amend their county code and refer to companion animal owners as "guardians." Id. The amendment was passed by an unanimous vote by the Berkeley City Council. Id.

[FN49]. West Hollywood Becomes Second U.S. City to Replace Animal Owner with Animal Guardian, In Defense of Animals, at http:// www.idausa.org/news/newsarchives/news_hollywood.html (Feb. 21, 2001). West Hollywood's City Council approved the amendment to change all references of "animal owner" to "animal guardian" on February 20, 2001 with no opposition. Id.

[FN50]. City of Sherwood, Arkansas Recognizes Concept of Animal Guardianship, In Defense of Animals, at http:// www.idausa.org/news/currentnews/news.sherwood.html (Sept. 26, 2001). Sherwood, Arkansas passed the amendment to reference those who care for companion animals as guardians on September 24, 2001 by an unanimous vote by the Sherwood City Council. Id. The passage of this amendment made Sherwood County the fourth in the nation to adopt such legislation. Id.

[FN52]. Village of Menomonee Falls, WI Becomes Fifth City to Recognize Animal Guardianship, at http://www.idausa.org/morenews.html (Mar. 11, 2002). The Village of Menomonee Falls amended its code on March 11, 2002. Guardian Campaign Updates, at http://www.idausa.org/campaigns/guardian/updates.html (last visited Feb. 13, 2003). The Village of Menomonee Falls was the fifth city to recognize animal guardianship. Village of Menomonee Falls, WI Becomes Fifth City to Recognize Animal Guardianship, at http://www.idausa.org/morenews.html (Mar. 11, 2002).

[FN53]. Schlesinger, supra note 44.

[FN54]. Therapy Dogs DJ, Maj-En, and Panda Girl Inspire Students to Initiate Rhode Island Victory, at http:// www.idausa.rg/campaign/guardian/rhodeisland/rhodeisland.html (last visited Feb. 27, 2003). Students from the DJ Pet Assisted Therapy/Service Learning Program at Feinstein High School in Rhode Island initiated the amendment to change all references to "animal owner" in Rhode Island's entire state legislation to "animal guardian." Id.

[FN59]. Kelch, supra note 57; William C. Root, 'Man's Best Friend': Property or Family Member? An Examination of the Legal Classification of Companion Animals and its Impact on Damages Recoverable for Their Wrongful Death or Injury, 47 Vill. L. Rev. 423, 436 (2002).

[FN65]. Homepage for Steven M. Wise, at http://literati.net/Wise/ (last visited Feb. 25, 2003). Professor Wise was also the former president of the Animal Legal Defense Fund, founder and president of the Center for the Expansion of Fundamental Rights, has written numerous scholarly articles about animal rights and has collaborated and communicated for years with leading scientists in the fields of primatology and animal intelligence and behavior. Id. He lives in Needham, Massachusetts with his wife and law partner Debra Slater-Wise, three children, and two companion animals. Id.

[FN80]. See 4 Am. Jur. 2d Animals § 6 (1995). Dogs were considered a lesser type of property than other animals pursuant to ancient common law. Id. However, today the common law has evolved to recognize a full and complete property in dogs. Id.

[FN84]. Interview With Professor Gary L. Francione on the State of the U.S. Animal Rights Movement, Act'ionline, at http:// www.friendsofanimals.org/action/summer2002/summer2002garyfrancione.htm (Summer 2002). Professor Francione taught the first course on animal rights and the law in an American law school in 1989. Id.

[FN91]. Id. at 37-38; contra Paul Waldau, The Specter of Speciesism: Buddhist and Christian Views of Animals 86-87 (Oxford University Press 2002). There are other indigenous traditions, late eighteenth-century secular utilitarianism, and even Buddhism that consider nonhuman lives sacred. Paul Waldau, The Specter of Speciesism: Buddhist and Christian Views of Animals 86- 87 (Oxford University Press 2002). Paul Waldau, author of The Spector of Speciesism: Buddhist and Christian Views of Animals, challenged Descartes' view and stated that it is "not based on familiarity with a full range of other animals, nor is it based on a commitment to know other animals and the realities of their lives." Id. Waldau further claimed that because of Descartes' exclusive prejudice, Descartes and others advancing a similar view, ultimately "missed some animals as opportunities to understand better the realities of living beings." Id. Waldau argued that the justification based on qualitative differences fails to explore the possibility of other viewpoints. Id. According to Waldau, our ethical traditions that limit self-interested acts against other humans presupposes that one can see from another's point of view. Id. Accordingly, "[t]his occurs despite the fact that we do not know exactly, or even approximately, what it is like to be another complex human individual." Id. Waldau suggests that the principle of considering other viewpoints when examining certain effects on other humans, should be similarly applied to animals in attempt to understand their complex viewpoints and interests. Id.

[FN108]. Lauren Krohn Arnest, Children, Young Adults, and the Law: A Dictionary 1 (ABC-CLIO, Inc. 1998). In 1874, the founder of the Society for the Prevention of Cruelty to Animals ("SPCA") recognized the cross connection between children and animals by bringing a suit against the adoptive parents of a child in the case of In re Custody of a Child Called Mary Ellen. Id. at 5- 6. The founder of the SPCA successfully argued that since the child was "a member of the animal kingdom, the child was entitled to protection from cruel treatment." Id. at 6. In fact, child abuse laws were said to be modeled after animal abuse laws. Id. Nonetheless, the notion of children as property has long been abandoned and although animals once charged along right next to children, they have been unable to keep up with the pace.

[FN133]. Id. at 158. The court explained in finding no cause of action for intentional infliction of emotional distress on behalf of American Airlines that "[a]s deplorable as it may be for American to have caused the death of an innocent animal, the Court finds no allegation, and no evidence from the facts alleged, that American's conduct was directed intentionally at Gluckman." Id.

[FN134]. Id. at 155 n.2. The court found that American's policy required that if ground time was to exceed forty-five minutes, pets were prohibited to be placed in the baggage compartment of an airplane in any temperature above eighty-five degrees or below forty-five degrees Fahrenheit. Id.

[FN136]. See id. at 157-59. The only claim that was not dismissed by summary judgment in Gluckman was the plaintiff's claim that American breached its obligation to him by failing to return the dog in the same condition in which the dog was received, reflecting a contractual obligation owed by the company to a passenger's piece of luggage. Id. at 160-63.

[FN137]. Id. at 158.

[FN138]. Id.

[FN139]. Id. at 157 (emphasis added).

[FN140]. Id. at 159.

[FN141]. Id. at 158. The cases plaintiff relied upon in contending that New York courts recognized a claim for loss of companionship of a pet were Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (1980) and Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182 (1979). In Brousseau, plaintiff was awarded damages for defendant animal hospital's negligence in causing the death of her dog while boarding at defendant's kennel. Brousseau, 443 N.Y.S.2d at 286. The court considered the plaintiff's loss of companionship in determining the amount of damages. Id. Moreover, the court noted that "[r]esisting the temptation to romanticize the virtues of a 'human's best friend', it would be wrong not to acknowledge the companionship and protection that Ms. Brousseau lost with the death of her canine companion of eight years." Id. at 286-87. The Gluckman court declined to follow Brousseau, finding Brousseau distinguishable in that the court therein, did not allow the plaintiff an independent claim to loss of companionship, but merely considered the plaintiff's relationship to her dog in calculating the fair market value. Gluckman, 844 F. Supp. at 158.

[FN149]. Id. The two cases cited by the court are Snyder v. Bio-Lab, Inc., 405 N.Y.S.2d 596 (1978) ("[a]s with personal property generally, the measure of damages for injury to, or destruction of, an animal is the amount which will compensate the owner for the loss and thus return him, monetarily, to the status he was in before the loss") and Stettner v. Graubard, 368 N.Y.S.2d 683 (1975) ("sentiment will not be considered in assessing market value for purposes of determining measure of damages for destruction of dog").

[FN157]. Id. at 799-800. Defendant claimed that Dakota was preparing to attack his dog, Jed, and fearing for the safety of Jed and his family, he fired the shots. Id. at 800. Conversely, plaintiff claimed that Dakota was not on the defendant's property and merely approached defendant's dog, sniffed him and at no time exhibited any aggressive behavior. Id.

We recognized that an individual's interest in freedom from negligent infliction of serious mental distress is entitled to independent legal protection . . . [i]n making such recognition, we did not distinguish between mental distress suffered as a consequence of witnessing injury to another and that resulting from the destruction of one's own property.

[FN180]. 723 N.Y.S.2d 627 (2001). In Johnson, a husband and wife sought emotional distress damages after their dog Coho was crushed by a speeding car driven by the defendant. Id. at 627. The court in Johnson stated, "[t]here is no doubt that some pet owners have become so attached to their family pets that the animals are considered members of the family . . . the court can empathize with the plaintiffs' alleged horrific viewing of the death of the family dog." Id. at 628.

[FN193]. See generally Laura W. Morgan, Who Gets Fluffy? Division of Pets In Divorce Cases, 11 No. 6 Divorce Litig. 113 (1999) (compiling various lower court decisions in various states that address companion animals in custody and visitation disputes); Barbara Newell, Animal Custody Disputes: A Growing Crack in the 'Legal Thinghood' of Nonhuman Animals, 6 Animal L. 179, 180 (2000) (tracking recent case law, state legislation, local ordinances, and scientific support for the Animal Legal Defense Fund's position that the resolution of custody disputes must include consideration of the interests of the animal); discussion infra Part III.B.

[FN199]. Id. The equitable distribution doctrine authorizes courts to apportion marital assets between divorcing parties in a just and equitable manner regardless of ownership. 24 Am. Jur. 2d Divorce and Separation § 484 (2002). Equitable distribution can either be set forth by statute or judicial construction. Id.

[FN200]. Id.

[FN201]. Id.

[FN202]. Id.

[FN203]. Id. at 110.

[FN204]. Id. at 111.

[FN205]. Id. (emphasis added); see discussion supra Part III.B.

[FN206]. Homer H. Clark, Jr., The Law of Domestic Relations in the United States, § 20.4, at 494-95 (2d ed. 1987).

[FN207]. Id.

[FN208]. Id. at 494.

[FN209]. Id. at 499.

[FN210]. Id. at 501. According to Clark, the book written by Goldstein, Freud, and Solnit, Beyond the Best Interests of the Child (2d ed. 1979), was the most important contribution to custody litigation in its insistence that "the primary emphasis of the courts' inquiry should be the relationship, in particular the psychological relationship, between parents and children." Id. (citing J. Goldstein, A. Freud, A. Solnit, Beyond the Best Interests of the Child (2d ed. 1979)).

[FN211]. 41 P.3d 593 (Alaska 2002).

[FN212]. Id. at 594.

[FN213]. Id.

[FN214]. Id. at 595.

[FN215]. Id.

[FN216]. Id. at 596 ("the judgment that custody of Coho would be shared is final and can only be modified under Alaska Rule of Civil Procedure 60(b)").

[FN217]. Clark, supra note 206, § 17.4, at 251. "Property rights based on the marital relationship are conclusively determined if actually litigated in the divorce action or if the decree makes a specific finding on property, and both parties are personally subject to the court's jurisdiction. This is an application of ordinary rules of res judicata." Id. (citation omitted).

[FN227]. Id. The court in Richardson ultimately ruled that plaintiffs could not recover more than $300 for emotional distress. Id. at 455-57. For a thorough examination on the issue of valuation of companion animals, see Wise, supra note 14.

[FN228]. 886 S.W.2d 368 (Tex. App. 1994).

[FN229]. Id. at 370.

[FN230]. Id.

[FN231]. See id. at 372-78.

[FN232]. Id. at 376-78.

[FN233]. Id. at 378.

[FN234]. Id. at 377.

[FN235]. See id.

[FN236]. Id.

[FN237]. Id.

[FN238]. Id.

[FN239]. Id. at 378 (emphasis in original).

[FN240]. Brown v. Muhlenberg Township, 269 F.3d 205 (3rd Cir. 2001).

[FN241]. Id. at 208.

[FN242]. Id.

[FN243]. Id. at 209.

[FN244]. Id.

[FN245]. Id.

[FN246]. Id.

[FN247]. Id.

[FN248]. Id.

[FN249]. Id.

[FN250]. Id.

[FN251]. Id.

[FN252]. Id.

[FN253]. Id. at 210-11. The Browns also successfully proved that the officer was not entitled to qualified immunity. Id. at 212.

[FN254]. Id. at 219.

[FN255]. No. 9009 of 1978, 1979 WL 489 (C.P. Luzerne County Jan. 30, 1979). In Banasczek, the court ruled in favor of the animal guardian and concluded that, "the more enlightened view is to allow recovery for emotional distress in the instance of the malicious destruction of a pet." Brown, 269 F.3d at 217 (citing Banasczek, 1979 WL 289, at *2).

[FN280]. Carole Lynn Nowicki, The Animal Welfare Act: All Bark and No Bite, 23 Seton Hall Legis. J. 443, 451 (1999). While the enactment of anti-cruelty laws signify the acknowledgment of companion animals as more than property, it is important to realize that such laws are often criticized by animal rights activists for being ineffective and inadequate in truly protecting animals. See generally Francione, supra note 85 (discussing state anti-cruelty laws against animals and the Animal Welfare Act of 1970, and its ineffectiveness in truly protecting animals from inhumane treatment). Some critics argue that both state and federal legislation lack strict enforcement of these laws, often leaving the aggrieved animal guardian to seek justice through tort law. Squires-Lee, supra note 11, at 1072. Nonetheless, the ineffectiveness and inadequacies of anti-cruelty laws exemplify the further importance in providing animal guardians an alternative recourse through civil law to ensure their protection from inhumane treatment as property.

[FN316]. See 12 U.S.C. § 1701r-1 (1983). Section 227 of the Housing and Urban-Rural Recovery Act of 1983 does not provide this right for the elderly or disabled who merely reside in federally assisted housing not specified for the elderly or in housing not federally assisted. Id.

[FN317]. See 42 U.S.C. § 3604 (1988).

[FN318]. Francione, supra note 85, at 253.

[FN319]. On July 11, 2000, the Boulder, Colorado City Council Voted 8-1 to Change the City's Municipal Code to Refer to People as the Guardian of their Companion Animals Instead of as Their "Owners.", In Defense of Animals, July 12, 2000, at h t t p : / / w w w . i d a u s a . o r g / c a m p a i g n s / property/boulder/boulder.html.

[FN332]. Id. Although the legislative intent to exclude veterinarians from liability pursuant to the T-Bo Act was not available, it was most likely due to the hesitance in discouraging the practice of veterinary medicine. Id. For a further discussion on the impacts to veterinarians in allowing mental anguish claims in torts, see Root, supra note 59, at 441-47.

(1) Whether the injury is too remote from the negligence; (2) whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor; (3) whether in retrospect it appears too extraordinary that the negligence should have brought about the harm; (4) whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor; (5) whether allowance of recovery would be too likely to open the way to fraudulent claims; or (6) whether allowance of recovery would enter a field that has no sensible or just stopping point.

Id. (quoting Bowen, 517 N.W.2d at 432).

The plaintiff in Rabideau suggested that the courts limit the scope to "the human companion of a companion animal who is killed." Id. However, the court identified the difficulty in precisely defining the class of human companions as it could include every family member or even a roommate. Id. Further, the scope of the plaintiff's suggestion failed to specify whether "human companion" would constitute the owner of record or primary caretaker. Id.

[FN339]. Id. Although the court acknowledged that the ability to form emotional bonds with a wide spectrum of animals added to "the richness of life," it inevitably failed to meet the public policy concerns of adopting a narrowly drawn definition of "human companion" and "companion animal," and thus, the plaintiff's suggestions were deemed unsatisfactory. Id.; see supra text accompanying note 336.

[FN340]. Id.

[FN341]. Id. at 807.

[FN342]. See discussion supra Part IV.A.

[FN343]. Tenn. Code Ann. § 44-17-403(a) (West 2002) (allowing the trier of fact to find an unlawful, intentional, or negligent individual causing the death or owner of the animal causing the death liable for up to $4,000 in non-economic damages); H.B. 03-1260, 64th General Assembly, 1st Regular Sess. (Co. 2003) (limiting an award for loss of companionship damages to no more than $100,000).

[FN344]. Tenn. Code Ann. § 44-17-403(b) (West 2002) (as used in section 44-17-403(a), "pet" means any domesticated dog or cat normally maintained in or near the household of its owner); H.B. 03-1260, 64th General Assembly, 1st Regular Sess. (Co. 2003) (proposed section 13-21-1002 defines "companion dog or cat" as an assistance dog, working dog, or other domesticated dog or cat that is owned or kept by a person for companionship, protection, or the sale to another for such purposes).